BOSTON — A tattoo artist convicted of assaulting a female client argued that the victim had consented to sexual touching based on where she wanted her tattoo — an argument the Massachusetts Appeals Court doesn’t buy.

A Leominster District Court jury in 2023 convicted Jose Benevides of indecent assault and battery based on a complaint by a client who said that he repeatedly touched her pubic area without her consent and generally made her uncomfortable as she got a thigh tattoo.

Benevides appealed, saying that the judge should have made a required finding of not guilty.

He argued that it wasn’t clear she hadn’t given consent to his actions because since she wanted a tattoo on her thigh she “clearly gave her consent for him to touch her in areas specifically identified by this court as ‘private areas,’” the Massachusetts Appeals Court summarized.

Appeals court members say that “this argument misapprehends the scope of the victim’s consent and they denied his appeal.

“Like a patient undergoing a medical procedure, the victim here consented to a specific procedure by the defendant: the placement of a tattoo on her front and outer right thigh,” the court wrote in denying the appellant’s claim, and she “did not consent to touchings of her body that were unnecessary or inappropriate for the agreed-upon tattoo procedure.”

At trial, it was made apparent that Benevides inappropriate touching was complemented by inappropriate comments.

The victim, who had previously gotten three tattoos from Benevides “without incident” and “had no other interaction or relationship” with him, wanted a five-inch tattoo on the front and outside part of her right thigh.

This time, there was an incident, as the Appeals Court document summarizes: “After the defendant placed the stencil on her thigh and began applying ink, he put his ring and pinky fingers directly on the victim’s pubic area.”

He apparently apologized for this, but, “as the appointment continued, the defendant’s comments and behavior led her to believe ‘that it was not an accident.’”

She testified that Benevides continued the touching in ways that differed from previous interactions, made sexual jokes, and even directly and repeatedly propositioned her for taking their interaction further, with comments like, “we could extend those services to something more exciting.”

The victim, whose apparent state of distress continued to climb throughout the encounter, said, “No, I don’t want to extend the services in that way. I don’t feel comfortable with that. That’s not what I’m here for.”

Then came the dripped ink right next to a very particular place on the victim’s anatomy. Benevides, she said, pointed it out and made moves to clean it off for her but she wanted to leave and said she would clean it off herself at home.

“The defendant then shoved his hand between her thighs and ‘started to sexually rub (her) thigh,’” the Appeals Court summarizes. “The victim ‘froze up because (she) didn’t know what to do,’ but, after the defendant asked if she ‘wanted to have fun with him’ … she ‘snapped out of it’ and said she did not. The defendant said, ‘But my hands were already there earlier,’ a statement that indicated to the victim that his earlier touching of her pubic area had not been accidental.”

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